For conduct occurring in the presence of the court below, in the trial of a criminal case on September 28, 1926, which conduct is set out at length in the order and judgment made and entered herein, this applicant was held in contempt and ordered to pay a fine of ten dollars; until this was done he was committed to the custody of the sheriff. On the same day and under oath applicant did enter his disclaimer of any contemptuous purpose, or that his effort to get before the jury testimony theretofore held by the court inadmissible, was a wilful defiance or disobedience to the court's rulings, but that on the contrary, after the testimony referred to had been by the court rejected, — other facts came out which, in applicant's belief, made admissible said rejected testimony, and same was accordingly again offered and insisted upon. Failing to get said judgment of contempt set aside, on the day following the entry of said judgment an application for habeas corpus was made to this court, alleging illegal restraint by the sheriff under said contempt judgment. A temporary writ was granted, bail fixed pending hearing before the whole court, and the matter was later submitted to us for our decision.
On October 6th following the granting of the writ, there was filed in the office of the clerk of this court what might be denominated the transcript herein, wherein, over the certificate of the district clerk, appears a copy of the order and judgment of the court finding applicant guilty of contempt for the doing of the things set forth; fixing the penalty and directing applicant's restraint until the fine was paid; also a copy of applicant's disclaimer. There appears among the papers a written statement signed by the applicant and the district attorney who represented the State in the court where the alleged contempt occurred, which seems to have been sent to our State's Attorney, and in which it is stated that they can not agree upon a statement of facts. We find further an undated and unsworn request by the applicant, setting up that he is unable to get a statement of facts from the district attorney and the trial judge, and that this court "refer the case to some tribunal" to ascertain the facts.
We know of no tribunal authorized to act upon such reference in a case like this, but if applicant had made out a statement of the facts as he understood same, and in due time had tendered same for agreement to the State's Attorney, — and for approval to the trial court, and there was a showing that the trial court refused to approve such statement of facts so tendered, and further refused then *Page 588 to make out and file a statement of his own, this court would have been in a position to say that applicant had been deprived of a statement of facts without negligence on his part.
In the condition we find the record, we have nothing before us save the order and judgment of the court, and the disclaimer of the applicant. Mr. Branch cites many cases in Sec. 272 of his Annotated P. C., holding that when the trial court has jurisdiction of the subject-matter and the parties, and has power to render the judgment of contempt appearing, — that such judgment is not void, and will not be reviewed on habeas corpus. Ex parte Tinsley, 37 Tex.Crim. Rep.; Ex parte Warfield, 40 Tex.Crim. Rep.. There seems no question of the jurisdiction of the court below both over the subject-matter and parties. In such case this court has no power to review the action of the court below by habeas corpus when the facts set out in the judgment are such as make contempt, and this is especially true when there is no statement of facts.
The applicant will be remanded to the custody of the sheriff of Gillespie county, and the application for habeas corpus denied.
Writ denied.
ON MOTION FOR REHEARING.